In re Keeley, Interim Decision #3907

CourtU.S. DOJ Board of Immigration Appeals
Writing for the CourtPAULEY, Board Member
Citation27 I&N Dec. 146
Docket NumberInterim Decision #3907
Decision Date20 October 2017
PartiesMatter of David Paul KEELEY, Respondent

27 I&N Dec. 146

Matter of David Paul KEELEY, Respondent

Interim Decision #3907

U.S. Department of Justice Executive Office for Immigration Review Board of Immigration Appeals

October 20, 2017


(1) The term "rape" in section 101(a)(43)(A) of the Immigration and Nationality Act, 8 U.S.C. § 1101(a)(43)(A) (2012), encompasses an act of vaginal, anal, or oral intercourse, or digital or mechanical penetration, no matter how slight. Perez-Gonzalez v. Holder, 667 F.3d 622 (5th Cir. 2012), not followed.

(2) The term "rape" also requires that the underlying sexual act be committed without consent, which may be shown by a statutory requirement that the victim's ability to appraise the nature of the conduct was substantially impaired and the offender had a culpable mental state as to such impairment.

FOR RESPONDENT: Amanda H. Frost, Esquire; and Doran Shemin, Washington, D.C.

FOR THE DEPARTMENT OF HOMELAND SECURITY: Meggan G. Johnson, Associate Legal Advisor

BEFORE: Board Panel: PAULEY, MALPHRUS, and MULLANE, Board Members.

PAULEY, Board Member:

In a decision dated August 8, 2016, an Immigration Judge found the respondent removable under section 237(a)(2)(A)(iii) of the Immigration and Nationality Act, 8 U.S.C. § 1227(a)(2)(A)(iii) (2012), as an alien convicted of an aggravated felony rape under section 101(a)(43)(A) of the Act, 8 U.S.C. § 1101(a)(43)(A) (2012), and ordered him removed from the United States.1 The respondent has appealed from that decision. The appeal will be dismissed.

I. FACTUAL AND PROCEDURAL HISTORY

The respondent is a native and citizen of the United Kingdom who became a lawful permanent resident of the United States on June 23, 1997. On January 13, 2011, he was convicted of rape in violation of section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated. The Immigration Judge determined that the respondent's offense was an aggravated felony

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under section 101(a)(43)(A) of the Act. The respondent did not apply for any relief from removal, and the Immigration Judge ordered him removed.

II. POSITIONS OF THE PARTIES

The parties agree that, at all relevant times, section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated made it unlawful to "engage in sexual conduct" with another with knowledge or reason to know of the fact that the other person's ability to resist or consent is "substantially impaired because of a mental or physical condition or because of advanced age." The parties further agree that the term "sexual conduct" was, at all relevant times, defined in section 2907.01(A) as

vaginal intercourse between a male and female; anal intercourse, fellatio, and cunnilingus between persons regardless of sex; and, without privilege to do so, the insertion, however slight, of any part of the body or any instrument, apparatus, or other object into the vaginal or anal opening of another.

The parties also generally agree that "rape" in section 101(a)(43)(A) of the Act refers to an offense that encompasses some form of sexual act that is committed under certain prohibitive conditions, including incapacity to consent to the sexual act. There are two points of contention in this case. First, the parties disagree on whether "rape" in section 101(a)(43)(A) encompasses digital or mechanical penetration or is confined to acts of vaginal, anal, or oral intercourse. Second, they dispute whether the "substantial impairment" standard under Ohio law is synonymous with an incapacity to consent.2

Whether the respondent's conviction is for an aggravated felony rape offense under section 101(a)(43)(A) of the Act is a question of law that we review de novo. 8 C.F.R. § 1003.1(d)(3)(ii) (2017).

III. ANALYSIS

Our inquiry is governed by the categorical approach set forth in Taylor v. United States, 495 U.S. 575 (1990), and its progeny. This approach requires us to compare the scope of conduct punished as rape under section 2907.02(A)(1)(c) of the Ohio Revised Code Annotated to the generic definition of "rape" in section 101(a)(43)(A) of the Act.

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The term "rape" was added to section 101(a)(43)(A) by section 321(a)(1) of the Illegal Immigration Reform and Immigrant Responsibility Act of 1996, Division C of Pub. L. No. 104-208, 110 Stat. 3009-546, 3009-627. This term is not defined by the Act or any other provision of Federal law. In the absence of a statutory definition, we must define the term according to its ordinary, contemporary meaning in 1996, when "rape" was added to section 101(a)(43)(A). See Matter of Alvarado, 26 I&N Dec. 895, 897 (BIA 2016) (finding "it appropriate to adopt a generic definition [of a crime] based on how [it] was commonly defined" when section 101(a)(43) was enacted).

To fully understand the meaning of "rape" in 1996, we must examine the evolution of rape offenses, and sex offenses in general, from their common law roots to Congress' addition of the term to the Act. Common law recognized two sexual offenses: rape and sodomy. 1 Wayne R. LaFave, Substantive Criminal Law § 2.1 (2d ed.), Westlaw (database updated Oct. 2017). The common law defined rape as "the carnal knowledge of a woman forcibly and against her will," and for the first half of the 20th century, State laws proscribing rape followed this definition. 2 LaFave, supra, § 17.1 (quoting 4 William Blackstone, Commentaries on the Laws of England 210 (1769)). Such "carnal knowledge" referred to the "physical act necessary for rape," namely, the "penetration of the female sex organ by the male organ." Id. "Sodomy" in early American jurisprudence deviated from its common law definition, which prohibited anal intercourse between two men, including acts such as anal and oral intercourse between two males or a male and a female. See Model Penal Code §§ 213.0(3), 213.2 cmt. 1 at 357-62 (1980) (regarding "deviate sexual intercourse").

The Model Penal Code recognized the first notable shift in the definition of rape in the early 1960s. The term "carnal knowledge" was replaced with "sexual intercourse," which the Model Penal Code defined as including vaginal, anal, and oral intercourse. Model Penal Code § 213.1(1) (1962). This change acknowledged the growing community consensus that intercourse was the defining act that separated rape from other forms of nonconsensual sexual contact. See Model Penal Code § 213.1 cmt. 8(d) at 346 (1980) (discussing the three categories of rape statutes that existed at the time: (1) those that punish "only genital copulation"; (2) those that reach "anal and oral copulation"; and (3) those that "include digital or mechanical penetration as well as genital, anal, and oral sex"). This change also earmarked the use of "rape" as an all-encompassing term to refer to offenses with the common characteristic of sexual intercourse. See id. (acknowledging that by including oral and anal intercourse in the definition of "sexual intercourse," the definition of rape necessarily included "behavior . . . punished in many jurisdictions under sodomy laws").

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The meaning of "rape" continued to evolve during the rape reform movement, which started in the early 1970s. See David P. Bryden, Redefining Rape, 3 Buff. Crim. L. Rev. 317, 320-21 (2000); Cassia C. Spohn, The Rape Reform Movement: The Traditional Common Law and Rape Law Reforms, 39 Jurimetrics J. 119, 122-30 (1999); see also Patricia Wencelblat, Boys Will Be Boys? An Analysis of Male-on-Male Heterosexual Sexual Violence, 38 Colum. J.L. & Soc. Probs. 37, 44 (2004) ("All state legislatures considered changes to their rape laws between 1974 and 1980."). Among other things, the changes included making the offense gender-neutral as to both the perpetrator and victim and further broadening the types of sexual acts covered. See Bryden, supra, at 321; Spohn, supra, at 122. The movement also resulted in numerous States renaming what they previously labeled "rape" with terms like "sexual assault," "sexual battery," and "criminal sexual conduct." See Bryden, supra; Spohn, supra. "Th[ese] statutory development[s], 'when viewed in totality, ha[ve] resulted in a modern crime which has little in common with its common-law ancestor . . . .'" Taylor, 495 U.S. at 593 (citation omitted).

The respondent argues that the scope of our inquiry into the ordinary, contemporary meaning of "rape" in 1996 should be limited to examining the laws of the 23 States that prohibited a crime specifically called "rape" at that time.3 Because less than a majority of these States included digital or mechanical penetration in the definition of rape, he argues that the community consensus in 1996 was that such conduct was not rape.4

The United States Court of Appeals for the Fifth Circuit adopted a similar approach in Perez-Gonzalez v. Holder, 667 F.3d 622, 627 (5th Cir. 2012). In that case, the court found that in 1996 a minority of States included digital penetration in statutes punishing a crime called "rape," while most States and

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the District of Columbia did not. Based on this survey, the court concluded "that digital penetration was [not] commonly considered rape in 1996." Id. We respectfully disagree with this conclusion.

In our view, the respondent's argument and the Fifth Circuit's approach rest on the faulty proposition that the laws of the 27 States and the District of Columbia that used terms other than "rape" to refer to crimes prohibiting forms of nonconsensual sexual intercourse in 1996 are irrelevant to determining the generic definition of "rape." The community consensus in 1996 was that the newly denominated crimes of "sexual assault," "sexual battery," and "criminal sexual conduct" were synonymous with "rape." See Bryden, supra; Spohn, supra; see also Black's Law Dictionary 1267 (7th ed. 1999) (stating that "rape" is "[a]lso termed (in some statutes) unlawful sexual intercourse; sexual assault; sexual battery; [and] sexual abuse"). And many of the relevant jurisdictions treated these crimes and "rape" as being "interchangeable," "synonymous," or "equivalent."5 As the Illinois...

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